A Whole ISIS Report Devoted to Little Ol’ Me

See the piece here.

It’s such a thrill to see so many of my detractors gathered together in one place. As an academic, there is in many ways no higher honor than to have your work perceived as so significant, relevant and influential, that it merits the energies of so many to respond to it. So I thank the authors and endorsers of this report for the high compliment they have given me in producing it. It’s kind of like having had a symposium devoted to my work – to which I wasn’t invited. Well, let me now offer my contribution to the symposium.

I could of course begin with a discussion of who each of the authors and endorsers of the report are, their varying academic qualifications (two of the three authors are not lawyers, and the third is not an international law expert in my opinion), and the biases they likely bring to the subject because of their past, present and likely future ties to governments and to the IAEA itself. But I won’t do that.

I could also, of course, mention again how many positive reviews and endorsements my work has received, including in peer-reviewed journals and in the international legal scholarly community generally. All this of course can be gleaned from my C.V.

All that such a discussion really does, however, is reinforce the point that on these issues there are many people who agree with me, and some who don’t. That’s going to be true of any interesting, important, high profile issue of academic debate, and so it should come as no surprise that it’s true here.

I’m happy to let the analysis and arguments that I’ve made in my books and law review articles, in my op-eds – including the ones presently proceeding specifically on this topic over at the Bulletin of the Atomic Scientists as part of an invited Roundtable – and here on ACL, stand for themselves in the eyes and judgments of readers. I’m confident, as I always have been, that serious experts in international law, and people who understand the role of international organizations in the international legal system, will agree with my assessments of the relevant sources of law.

To be honest, I don’t see a lot in this new piece in terms of actual legal arguments that haven’t been made before in response to my work, particularly over in the BAS Roundtable by Ford and Persbo. And I’ve already responded to them there, with references to my original post here on ACL. So I don’t think there’s much new to respond to here in terms of substance. It does of course have Albright’s nastiness of tone, which one can spot a mile away.

But I would offer a few thoughts on this new iteration of those arguments.

First, I would note the weakness of the assertions made in this piece attempting to legally justify the IAEA’s inquiries into possible military dimensions of Iran’s nuclear program. I of course wrote on this issue some time ago here. I see no persuasive legal arguments offered in this piece that would challenge my conclusion that the IAEA lacks the authority to investigate and to assess weaponization related activities in Iran.

Second, so much of the text of this new piece is devoted to chronicling IAEA practice and statements which imply that the IAEA thinks it has a legal mandate under the CSA to investigate and assess both the correctness and completeness of Iran’s declaration – i.e. to investigate and assess whether there are undeclared fissile materials in Iran. I’ve never argued that the IAEA doesn’t think they have this authority. In fact, their statements and actions implying that they think they have this authority, are precisely what led me to write on this issue in the first place.

But just because an international organization asserts a legal authority, doesn’t mean that it actually has that legal authority. This is analogous to domestic governments who assert that they have certain legal authorities to act, only to have those assertions authoritatively contradicted by courts who strike down those actions as unconstitutional. Similarly here, the IAEA is bound by the limits of its authority in its Statute and in its safeguards agreements, and its simple assertions that it has certain authorities in excess of these textual limitations, do not serve to effectively overcome those limitations. Actions by the IAEA in excess of its authority pursuant to its international legal constitutive sources, are just as ultra vires and therefore invalid, as are the unconstitutional actions of a domestic government. An objective assessment of the IAEA’s foundational legal sources, using proper international legal interpretation, is necessary in order to determine whether the IAEA is acting within its authority. This is what a court would do if it were to be properly seized of the matter.

Third and finally, the IAEA in CSA Article II has the mandate to ensure safeguards are applied in the state party, subject to the terms of the CSA, which only give the Agency certain limited investigative authorities. The IAEA has over time come to consider that the terms of the CSA, and the investigative tools given to the Agency in the CSA, aren’t sufficient for it to make the determinations required of it in CSA Article II. The IAEA now considers that, in order for it to be able to make these determinations, the CSA state party must provide the IAEA with cooperation in its investigations, above and beyond the level of cooperation required of the state party according to the terms of the CSA, including through the signing of a separate and additional treaty, the Additional Protocol. If the CSA state party doesn’t provide this cooperation above and beyond the terms of the CSA, the IAEA thinks that it can still apply what it considers to be its mandate for assessment under the CSA, and by reference to this mandate determine that the state party is in noncompliance with its safeguards obligations – even though as far as the state is concerned, it is doing everything it obligated itself to do according to the terms of the CSA, and is providing all the procedural and substantive cooperation it agreed in the CSA to provide.

Basically, the IAEA has taken the view that it can unilaterally change the obligations of cooperation that states are under pursuant to a CSA, to obligate the CSA state party to give the IAEA increased but unspecified investigative and assessment tools, in order to enable the IAEA to make the determination that there are no undeclared fissile materials in the state party.

And therein lies the problem. The IAEA cannot unilaterally change the obligations of cooperation that states are under pursuant to the terms of the CSA. Instead of realizing this fact, and working within the limits of its existing legal authority and the existing legal obligations of Iran, the IAEA has instead insisted on applying pressure on Iran to cooperate above and beyond the terms of its CSA, and has maintained that until Iran provides this extra cooperation, the Agency will continue to find that Iran is in violation of its safeguards obligations – even though Iran has been providing the procedural and substantive cooperation it agreed to provide according to the terms of the CSA, the only safeguards agreement currently in force upon Iran.

It’s basically a case of one party to an agreement unilaterally trying to change the rules of the agreement, and alleging that the other party is in breach of the agreement if they don’t abide by the new rules.

So this has essentially produced the standoff that we see reflected in IAEA DG reports on Iran. The IAEA insisting that it be given more investigative cooperation by Iran than that which Iran is required to provide in its CSA, Iran refusing to provide that additional cooperation, and the IAEA maintaining that if Iran doesn’t give that additional cooperation, the IAEA will continue to determine that Iran is in noncompliance with its safeguards obligations.

The IAEA is simply wrong in doing this, and is aggravating the crisis regarding Iran’s nuclear program through its attempts to act ultra vires its legal authority.


17 Comments on “A Whole ISIS Report Devoted to Little Ol’ Me”

  1. yousaf says:

    Thank you Dan — as before, I think folks misunderstand what would be ideal, versus what actually is in the world of non-proliferation law.

    To pick just one thing in the ISIS report — they say:

    “Moreover, comprehensive safeguards agreements involve more than the verification of a state’s declared nuclear materials. They also involve that which should be declared.”

    This is, of course, only true if the state has (voluntarily) ratified the Additional Protocol. Iran has not.

    None of what I state below will be new to the readers of the blog, but I attempt to put it in one place for completeness.

    To settle this issue of declared versus all material, one can see what the IAEA itself says:

    The IAEA is pretty crystal clear on this point:


    “Basically, two sets of measures are carried out in accordance with the type of safeguards agreements in force with a State.
    One set relates to verifying State reports of ****declared**** nuclear material and activities. These measures – authorized under NPT-type comprehensive safeguards agreements – largely are based on nuclear material accountancy, complemented by containment and surveillance techniques, such as tamper-proof seals and cameras that the IAEA installs at facilities.
    Another set adds measures to strengthen the IAEA’s inspection capabilities. They include those incorporated in what is known as an “Additional Protocol” – this is a legal document complementing comprehensive safeguards agreements. The measures enable the IAEA not only to verify the non-diversion of declared nuclear material but also to provide assurances as to the absence of undeclared nuclear material and activities in a State.”

    If the benefits of the Additional Protocol were available to the IAEA without a state having ratified the AP, then there would be no need for the AP.

    Furthermore, the UNSC has not “imposed” the AP on Iran (as it cannot do so), and only “calls upon” Iran to consider doing so. The AP is a voluntary measure.

    Moreover, there is no one who has tasked the IAEA with proving that a nation’s nuclear program is purely peaceful.

    In their reports on Iran, the IAEA is simply making a tautological statement that the “Agency is unable to provide credible assurance….to conclude that all nuclear material in Iran is in peaceful activities.” That is of course true, as it is also for 51 other states. The Agency cannot also verify the purely peaceful nature of Brazil’s and Argentina’s nuclear program. Not a problem.

    The problem, I think, is that the media and many pundits think that the IAEA is castigating Iran by stating this. The IAEA is simply making a statement of the limits of their ability.

    For 51 other states, the IAEA also finds “no indication of the diversion of declared nuclear material from peaceful nuclear activities. Evaluations regarding the absence of undeclared nuclear material and activities for each of these States remained ongoing.”


    Another way to state the last sentence is to say what the DG report says about Iran — ie. for all 51 states: that ” the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in [51 states], and therefore to conclude that all nuclear material in [51 states] is in peaceful activities.”

    Pierre’s Goldschmidt’s write-up on the inconsistent UNSC referral of various states when they are found to be in “non-compliance” to be very interesting and eye-opening:


    He says “The actions taken by the board in each case were inconsistent
    and, if they go uncorrected, will create unfortunate precedents.”

    Well, yes, they have.

    There are no firm legal/technical measures to determine when a country is in “non-compliance” to begin with. According to the IAEA-Iran Safeguards agreements, the proper course of action is arbitration. viz.


    “Article 22
    Any dispute arising out of the interpretation or application of this Agreement, except a dispute
    with regard to a finding by the Board under Article 19 or an action taken by the Board pursuant to such
    a finding, which is not settled by negotiation or another procedure agreed to by the Government of Iran
    and the Agency shall, at the request of either, be submitted to an arbitral tribunal…”

    In any case, although Iran may have been found in non compliance a decade or so ago, it is in compliance now, according to the CSA.

    Also, there are indications that the Agency is being pressured politically and/or acting unprofessionally.

    “For Kelley, formerly with the IAEA, the current Iran report is a “real mish-mash” that includes some “amateurish analysis.”
    “The Agency is wrong. There are lots of applications for EBWs,” says Kelley. “To be wrong on this point, and then to try to misdirect opinion shows a bias towards their desired outcome…. That is unprofessional.” ”

    Finally, as the US and Israeli Intelligence Community has concurred: there is no extant nuclear weapons work in Iran. See:


    The DNI has “high confidence” that no such nuclear weapons work is going on in Iran.

    Mohamed ElBaradei, the Nobel Peace Prize laureate who spent more than a decade as the director of the IAEA, said that he had not “seen a shred of evidence” that Iran was pursuing the bomb.

    His full quote from the New Yorker article:


    ‘During my time at the agency we haven’t seen a shred of evidence that Iran has been weaponizing, in terms of building nuclear-weapons facilities and using enriched materials….I don’t know the future intentions of Iran, but I don’t believe Iran is a clear and present danger. All I see is the hype about the threat posed by Iran.’

    The dangerous route that ISIS is taking (by thinking — or wishing — that the IAEA has greater powers than it does) will harm the nonproliferation regime and will be a great disincentive for nations to sign on to future nonproliferation initiatives.

  2. Nick says:

    Dr. Joyner, you are truly a gift to the American politics, as it relates to the IAEA’s handling of Iran’s nulcear dossier and international law for non-proliferation. I have read all your books and articles related to this topic. Please keep up the good work and continue to debunk the nonsense that Albright and others like him put out without an ounce of deep knowledge of non-proliferation laws as you have.

  3. It seems to me that whilst the IAEA would like to have “complete” info on a country’s nuclear program (assurance that there are no UNDECLARED nuclear material, in addition to assurance of non-diversion of declared nuclear material) the CSA inspections regime itself only allows for “correctness” (verification of non-diversion of DECLARED nuclear material) and the NPT envisions reliance on OTHER mechanisms for ensuring completeness — namely, the threat of “special inspections” and the general voluntary compliance with the NPT. Naturally, the IAEA may want additional investigative powers to acheive the goal of completeness, and may feel that this is required, however the methods legally available to it only allow certification of correctness, not completeness. The IAEA can’t single-handedly try to expand the inspections regime or the law to suit itself, and the fact that the existing CSA inspections regime only allows verification of non-diversion for declared mateial is not Iran’s fault.

    Furthermore, lets note that Iran was willing to exceed the obligatory inspections requirements, and provided cooperation that went beyond even what the AP would require of Iran, in order to resolve the “Outstanding Issues” listed in the Iran-IAEA Modalities Agreement of Aug 2007. http://www.iaea.org/Publications/Documents/Infcircs/2007/infcirc711.pdf
    In fact by Feb 2008, the IAEA DG announced that all the issues regarding Iran’s past nuclear experiments had been resolved: “We have managed to clarify all the remaining outstanding issues, including the most important issue, which is the scope and nature of Iran´s enrichment programme.” http://www.iaea.org/newscenter/transcripts/2008/transcr220208.html

    The only outstanding issues were the “alleged studies” that according to the IAEA DG involved no diversion of nuclear material, even if the allegations were true (which was never established.) Under the Modalities Agreement, Iran was required to submit their analysis of the allegations “upon receipt of the full documents” but Iran was never provided the full documentation of the allegations that it was expected to refute. However, Iran nontheless filed a 117 page assessment of the allegations in May 23 2008, thus completing what it was supposed to do pursuant to the Modalities Agreement.

    • yousaf says:

      Good point — I never quite understood why special inspections were never invoked. Does anyone know?

      • Well I suppose because the US goal is to drag this standoff out, not to dispell or resolve it. Ultimately, in the greater political context (in which the legal context is just a minor player) the goal is to use the “Iranian nuclear threat” as a pretext for imposing regime-change there, just as “WMDs in Iraq” was a pretext. So why do anything to resolve the standoff? (Anyway, imagine the publicity if the Board denied the request, or nothing incriminating was found!)

        Also, to go to the IAEA Board and request special inspections would require some sort of evidence of Iran doing something it should not be doing, but the fact is that everything Iran is doing is legal. Even people at the IAEA have complained that no actual evidence has turned up from the intelligence provided. http://www.sfgate.com/politics/article/Most-U-S-tips-fingering-Iran-false-envoys-2646358.php

        Instead we have: 1- speculation about future intent (Iran wants the “capability” to make nukes) which isn’t itself illegal, equally applies to 1 out of 4 nations on the planet, and cannot be dispelled by any amount of IAEA inspections anyway,

        2- Speculation about past nuclear activities such as the “traces of HEU” and the Polonium studies, which hav been resolved uniformly to Iran’s favor, thanks to the Modalities Agreement of 2007-2008 (which the US strongly opposed)

        3- Speculation about activities, such as paper studies and computer modeling and warhead designs, *not* involving any diverted nuclear material, but that “may be relevant” to nuclear “weaponization studies” …. whatever any of that means. The IAEA’s inspection authority does not extend to non-nuclear activities nor does Iran’s safeguards agreement give the IAEA carte blanche to follow these allegations, so that’s a problem right there.

        And included in this last category is the “Alleged Studies” mentioned in IAEA reports (but renamed “Possible Military Dimensions” by Amano) for which the actual evidence (obtained from the “Laptop of Death”) remains sketchy and never fully corroborated or verified by the IAEA (which has not even been given the full evidence possessed by the US for any independent verification.) In regards to the last category, El-Baradei said that IF the allegations were true, Iran had conducted weaponization activities (note the past tense) and then he added that the “IF” had to be “underlined three times” ,because “there is a major problem of the authenticity of the documents” http://www.thehindu.com/opinion/op-ed/article28114.ece

        Now, the NIE would tend to support the third category, stating that Iran had weaponization in the past (up to 2003-2004) and then stopped, with no indication of an interest in resuming the program. But while the IAEA welcomed the conclusion that there was no existing nuclear program in IRan, the IAEA never endorsed the NIE’s conclusions about the existence of past nuclear activities. In fact the IAEA “reiterates that it has no concrete proof that there is or has been a nuclear weapon programme in Iran.” http://www.iaea.org/newscenter/mediaadvisory/2009/ma200919.html

        (The natural reaction of the Israelis and war advocates has been to first blow a gasket about the NIE’s conclusion by throwing massive fits with flying accusations of an intelligence “coup” carried out against the Bush administration, and since then they have been trying to undermine the NIE’s conclusions by faking proof of an on-going nuclear weapons program in Iran, or one that at least went past 2004. Thus far to no avail.)

        Wow that was long.

      • Johnboy says:

        “I never quite understood why special inspections were never invoked”

        Well, you would ONLY invoke them if you were utterly and completely convinced that you knew what you were going to find when you turned over that rock.

        You certainly wouldn’t invoke a special inspection in order to go on a fishing expedition; only a zealot or a fool would rush in to that trap.

        So the fact that Amano won’t invoke special inspections is actually revealing i.e. no matter how “compelling” they claim the evidence to be, and no matter how “concerned” they profess to be regarding that evidence, the IAEA is not at all convinced that Mossad and the CIA are telling it the truth or that the evidence that has been handed to it is kosher.

      • Undeclared! says:

        “I never quite understood why special inspections were never invoked”

        Probably, due to legal constraints, because special inspection may be initiated, according to article 77 of INFCIRC/153, either by request of the State itself, or when “information made available by the State” is inadequate or inconsistent (interestingly, it voids any information provided by third party!).

        This confirms also that Agency verification activities are initiated by, focused on, and limited to State declarations.

  4. Johnboy says:

    I have to say that the very logic that underpins David Albright’s article simply does not stand up to scrutiny.

    The NPT says that each country must negotiate a CSA with the IAEA, and the goal of those CSA’s this is to ensure the non-diversion of nuclear material from nuclear sites declared by that state to the IAEA.

    Nothing more, no less.

    Now, correct me if I am wrong, but Dan’s basic argument is that the CSA’s *as* *negotiated* allow the IAEA to determine the “correctness” of those declarations, but not their “completeness”.

    It is that very loophole that led to the development of the Additional Protocols, whose core aim is to give the IAEA the additional powers it requires to determine “completeness” as well as “correctness”.

    Logic therefore dictates that the very existence of those AP’s cuts David Albright off at the knees.

    After all, if all that was required was that the IAEA wave a magic wand over its head while chanting “I Now Make It So” then….. what’s all this nonsense about needing to get states to sign the Additional Protocols?

    Or, put another way: if those Additional Protocol’s require ratification by each state then what’s all this shit about the IAEA being able to grant itself whatever additional investigative powers it wants/needs/would like to have?

    Both propositions can’t be correct.

    Yet David ‘n’ his gang appear to be claiming that the IAEA can have it both ways i.e. sign this Protocol, damn you, and if you don’t then it doesn’t matter anyway.

    • Dan Joyner says:

      I think you’ve got it in one, Johnboy. I tried not to do too much qualification bashing in my response, but I do hope people notice that this piece was authored by two non-lawyers and Orde Kittrie, who in my sincere opinion is not an international legal expert. Just look at his scholarship – what there is of it. Some domestic law, a couple of nonproliferation pieces, and for the last some years a string of pieces on how the US can tighten sanctions on Iran. See if you can spot any really quality international legal scholarship in there, I dare you. And this is the group that wants to guide readers through these intricate treaty interpretation and international organizational law questions regarding the legal mandate of the IAEA. That’s like me writing an explanatory text on securities regulation. I know there is such a thing as the SEC, and I know what I think it should do, but that’s about it.

      • Johnboy says:

        I suspect the problem lies at a very fundamental level i.e. guys like David Albright simply don’t have the faintest clue regarding the sovereign rights of states.

        Iran is a sovereign state and so, by definition, on its own soil it is The Supreme Power.

        Which means that there is only one way in which Iran can suborn its sovereign power to the IAEA’s investigative “authority” i.e. Iran must put its signature to a binding treaty wherein it agrees that the IAEA can go *here* and the IAEA can poke its nose *there*, and the IAEA ask pointed questions about *this* or *that* or *those*.

        It is utterly and completely immaterial that Amano *claims* that he has the authority to go *here* or poke his nose *there* if he can’t produce an Iranian signature on a document that says he can do that.

        Otherwise Amano simply doesn’t have that authority, and his claims to the contrary simply leaves him as a would-be Emperor prancing around with his donger swinging in the breeze.

        I really can’t make it any simpler than this: Iran is SOVEREIGN, and so Iran must sign a document that expressly gives Amano the authority that he claims to possess.

        Q; Can Amano present such a document?
        A: No, he can’t.

        He can produce the Additional Protocols, sure, but Iran hasn’t ratified that document.

        And until they do then he is simply running around with his donger hanging out for all to see.

        It’s just that court jesters like David Albright insist on refusing to see it.

  5. yousaf says:

    Another fascinating thing one hears from time to time is that Iran must “come clean” on past activities — what does this mean in a legal sense?

    e.g. How clean is clean? What if it never did what the P5+1/IAEA/UNSC thinks it did?

    • Iran already “came clean” on its past nuclear program — as outlined by the Modalities Agreement — and nothing incriminating was found. And yet some insist that somehow, Iran’s past breaches of safeguards (which amounted to “failures to disclose” otherwise legal activities, due to US interference & obstructionism) which were remedied to the IAEA’s satisfaction, nevertheless somehow negated Iran’s sovereign right to have a domestic enrichment program and its rights as recognized by Article IV of the NPT. This, even though there is presicely zero authority for such a claim — nothing in the NPT, in the IAEA Statute, in Iran’s CSA, or any other source allows the IAEA or any other entity to demand that a country “suspend” their enrichment program.

  6. Hi Dan,
    Imagine if they /didn’t/ run amuck like they’ve done when you have set them (Albright and co.) straight. Now, that would have been worrying.

    On a (sort of) different note, a different department of the USG “gives Iran until March to cooperate with IAEA”, warning Iran that “the issue may otherwise be referred to the U.N. Security Council”.

    Thought you might be interestered. By the way, you should create a Twitter account for this blog. It deserves to be read widely.

  7. yousaf says:

    One of the biggest and notorious leakers of sensitive information is the ISIS organization.

    They were complicit — wittingly or not — in the pre-war propaganda on Iraq and are, according to various news reports quoted here, playing a similar role on Iran now:



    Today, Albright’s Institute for Science and International Security (ISIS) is issuing a flurry of alarmist reports about Iran’s nuclear bomb progress, often accompanied by the same kind of satellite photos and diagrams that helped persuade many Americans that Iraq must possess unconventional weapons that turned out to be fictitious.

    For instance, in the run-up to war in Iraq, Albright co-authored a Sept. 10, 2002, article – entitled “Is the Activity at Al Qaim Related to Nuclear Efforts?” – which declared, “High-resolution commercial satellite imagery shows an apparently operational facility at the site of Iraq’s al Qaim phosphate plant and uranium extraction facility (Unit-340), located in northwest Iraq near the Syrian border. This site was where Iraq extracted uranium for its nuclear weapons program in the 1980s. …

    “This image raises questions about whether Iraq has rebuilt a uranium extraction facility at the site, possibly even underground. … Unless inspectors go to the site and investigate all activities, the international community cannot exclude the possibility that Iraq is secretly producing a stockpile of uranium in violation of its commitments under Security Council resolutions. The uranium could be used in a clandestine nuclear weapons effort.”

    Albright’s nuclear warning about Iraq coincided with the start of the Bush administration’s propaganda campaign to rally Congress and the American people to war with talk about “the smoking gun in the form of a mushroom cloud.”

    Though Albright eventually grew skeptical about the alleged resurrection of an Iraqi nuclear program, he remained a firm believer in the Bush administration’s claims about Iraq’s supposed chemical and biological weapons programs as justification for the March 2003 invasion.

    Gullibility Exposed

    In summer 2003, after the promised WMD caches proved non-existent, the journalism watchdog group FAIR published a study by Seth Ackerman looking at the American press corps’ gullibility and citing the role of weapons experts like Albright.

    Entitlted “The Great WMD Hunt,” the article said, “In part, journalists absorbed their aura of certainty from a battery of ‘independent’ weapons experts who repeated the mantra of Iraq concealment over and over. Journalists used these experts as outside sources who could independently evaluate the administration’s claims. Yet often these ‘experts’ were simply repeating what they heard from U.S. officials, forming an endless loop of self-reinforcing scare mongering.

    “Take the ubiquitous David Albright, a former U.N. inspector in Iraq. Over the years, Albright had been cited in hundreds of news articles and made scores of television appearances as an authority on Iraqi weapons. A sample prewar quote from Albright (CNN, 10/5/02): ‘In terms of the chemical and biological weapons, Iraq has those now. How many, how could they deliver them? I mean, these are the big questions.’”

    FAIR added: “But when the postwar weapons hunt started turning up empty, Albright made a rather candid admission (L.A. Times, 4/20/03): ‘If there are no weapons of mass destruction, I’ll be mad as hell. I certainly accepted the administration claims on chemical and biological weapons. I figured they were telling the truth. If there is no [unconventional weapons program], I will feel taken, because they asserted these things with such assurance.’”

  8. […] and some of his friends, only one of whom is a lawyer (I responded to their report previously here).  The point in question is the incorrectness of the IAEA Director General’s (and by extension […]

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